Former AG Mukasey: Obama Broke 'Unconstitutional' Law With Bergdahl Swap

Sunday, 08 Jun 2014 11:33 AM

By Sandy Fitzgerald

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President Barack Obama broke the law by not letting Congress know in advance about his plans to trade five Taliban prisoners for Sgt. Bowe Bergdahl, says former Attorney General Michael Mukasey, who nevertheless believes the law itself is unconstitutional.

"Article II [of the Constitution] makes him the commander in chief of the armed forces," Mukasey told "Fox News Sunday" host Chris Wallace Sunday. "Those people were in the custody of the armed forces."

The National Defense Authorization Act, requires that the president must notify Congress at least 30 days prior to the release of detainees from Guantanamo Bay.

Urgent: Approve of Obama’s Taliban Swap? Vote Here

But that doesn't mean Mukasey, who served in the George W. Bush administration, approves of the deal to free Bergdahl. He  thinks a swift military investigation is needed, preferably within the next six months, to investigate the soldier's actions after he left his base in Afghanistan.

"We know what he did," Mukasey said. "The question of why he did it is also I think pretty obvious. The question is what he did afterwards. You can’t wait to try a case until you know absolutely everything about everything. We know enough."

In addition, the question of whether Bergdahl has suffered enough and should not face trial should not at all relate to the question, said Mukasey.

Desertion is a "very serious offense" that carries a possible death sentence, he continued, noting that there was one soldier executed for desertion after World War II.

"I'm not saying the death penalty should be on the table," Mukasey said. "That's some indication of the seriousness with which the military considers desertion."

Mukasey also clarified a statement he made in a column in The Washington Post this past week, in which he called the celebration in the Rose Garden for Bergdahl's release "ghastly"

"The president was essentially taking a victory lap, which I thought was absurd," said Mukasey.

"It is difficult to believe that the president actually understood last weekend the enormity of what he had done. All the details of how Bergdahl left his unit may have to be teased out in the setting of a court martial, but it has long been known that he was a malcontent who had sent his belongings home well before the day in June 2009 when he left his unit in Afghanistan, that he wrote that the army he served in was a "joke" and that he was ashamed to be an American," Mukasey wrote in the column.

Urgent: Approve of Obama’s Taliban Swap? Vote Here

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